COURT OF APPEALS OF INDIANA - IN.gov · COURT OF APPEALS OF INDIANA Patrick M. Dobson, Appellant-Petitioner, v. Bethany L. Dobson, Appellee-Respondent. April 18, 2019 Court of Appeals

Court of Appeals of Indiana | Memorandum Decision 18A-DR-1997 | April 18, 2019 Page 1 of 23

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be

regarded as precedent or cited before any court except for the purpose of establishing

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Vincent M. Campiti

Nemeth, Feeney, Masters & Campiti, P.C. South Bend, Indiana

ATTORNEY FOR APPELLEE

Robert J. Palmer

May Oberfell Lorber Mishawaka, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Patrick M. Dobson,

Appellant-Petitioner,

v.

Bethany L. Dobson,

Appellee-Respondent.

April 18, 2019

Court of Appeals Case No. 18A-DR-1997

Appeal from the St. Joseph Circuit Court

The Honorable William L. Wilson, Magistrate

Trial Court Cause No.

71C01-1501-DR-52

Robb, Judge.

Dynamic File Stamp


Case Summary and Issues

[1] Following the entry of a decree of dissolution between Patrick Dobson

(“Husband”) and Bethany Dobson (“Wife”), Husband appeals and challenges

the trial court’s division of property and judgment ordering him to pay Wife’s

attorney fees. This case presents several issues for our review, which we restate

as: (1) whether the trial court erred by including the full amount of Wife’s

student loan debt in the marital estate; (2) whether the trial court abused its

discretion in finding that Husband committed marital dissipation and ordering

Husband to reimburse Wife for damage he caused to her vehicle; (3) whether

the trial court’s judgment ordering Husband to reimburse Wife for unpaid

temporary maintenance was clearly erroneous; (4) whether the trial court

abused its discretion by awarding Wife attorney fees in the amount of $20,000;

and (5) whether Wife is entitled to appellate attorney fees.

[2] We conclude the trial court properly included Wife’s entire student loan debt in

the marital estate pursuant to Indiana law and the trial court did not abuse its

discretion with respect to finding Husband’s conduct constituted marital

dissipation. However, because Husband agreed to pay the monthly mortgage

payments in lieu of maintenance, the trial court’s judgment ordering Husband

to pay Wife temporary maintenance is clearly erroneous as it fails to consider

any payments Husband made during that time. With respect to attorney fees,

the trial court did not abuse its discretion by ordering Husband to reimburse

Wife for $20,000 in attorney fees. Finally, we decline to award appellate


attorney fees to Wife. Accordingly, we affirm in part, reverse in part, and

remand.

Facts and Procedural History

[3] The parties were married on April 27, 2010 and have one child of the marriage,

M.D., born September 2010. Husband learned of Wife’s extramarital affair in

August 2014 and the parties separated in January 2015. Husband filed a

Petition for Dissolution of Marriage on January 23 that same year. The parties

entered into an “Agreed Temporary Order” on February 13, 2015, in which the

parties agreed that Husband “shall pay the monthly mortgage payment in full

on the marital residence in lieu of payment of maintenance to [Wife]. [Wife’s]

waiver of maintenance shall constitute her contribution to the marital residence

during the pendency of this action.”1 Appendix of Appellant, Volume 2 at 26.

A bench trial was held on February 1, 2018, and the trial court took the matter

under advisement. On March 19, 2018, the trial court entered its decree of

dissolution with specific findings of facts and conclusions of law. The trial

court determined the marital estate, divided it, and found in pertinent part:

[Assets]

Husbands 1st Source Account 1,082.80

Wife’s 1st Source Account 688.62

Wife’s TCU Account 581.78

1 The marital residence was later foreclosed upon in 2016. See Transcript, Volume II at 44, 77; see also

Exhibits at 71-73.


Marital Residence (foreclosed upon) 0.00

Wife’s 401(k) account 344.42

Husband’s Toyota Tacoma 14,000.00

Wife’s Toyota 4Runner 22,800.00

Firearms 2,000.00

Husband’s Tag Heuer watch 1,700.00

Wife’s Tag Heuer watch 2,300.00

Diamond earrings 1,500.00

Wedding ring 5,500.00

Marital residence bedroom furniture 0.00

Marital residence living room furniture 0.00

Total: $52,497.82

* * *

[Debts]

Husband’s vehicle loan 25,006.83

Wife’s vehicle loan 26,756.90

Wife’s student loans 48,416.64

Husband’s TD Bank credit card 1,155.63

Husband’s Bank of America credit card 1,460.75

Sam’s Club credit card 980.09

Pier 1 credit card 400.00

Discover credit card 1,691.89

Total: $105,868.73

13. The net marital estate is -$53,370.91.

14. Wife claims that the evidence presented to the Court rebuts

the presumption that an equal division of the marital estate is fair

and reasonable. Specifically, before the date of separation,

Husband destroyed a substantial amount of Wife’s clothing and

household furnishings. Wife contends this amounts to

dissipation of marital assets. There is no dispute that Husband

cut large holes into many items of Wife’s clothing, rendering it

unwearable. There is no dispute that in a fit of rage, Husband

wrecked many items of furniture. . . . In fact, Husband . . .

shattered a window in Wife’s vehicle, causing the cost of repair

in excess of $2,000.


15. . . . [T]he Court concludes that Husband’s actions of

destruction constitute dissipation.

16. Having found dissipation, the Court must next determine the

amount or value of the assets that were destroyed. Wife claims

that the replacement of the various items was over $13,000.

Unfortunately for Wife, the law in Indiana does not permit the

Court to use the replacement costs. The Court is not free to

speculate as to the fair market value of used clothing and used

furniture; to do so would be reversible error. Therefore, the

Court must assess the value of the assets at zero dollars since

there is no other evidence on which the Court can base a value.

17. Indiana law requires the Court to divide the marital property

in a just and reasonable manner. Indiana law also states that this

Court is to presume that an equal division is just and reasonable,

but that presumption can be rebutted with certain relevant

evidence. In this case, the Court concludes that although she

came close, Wife did not get over the bar and successfully rebut

the presumption.

18. To achieve a just a reasonable division of the marital estate,

the Court divides the marital estate as follows:

To Wife:

Wife’s 1st Source Account 688.62

Wife’s TCU Account 581.78

Wife’s 401(k) account 344.42

Wife’s Toyota 4Runner 22,800.00

Wife’s Tag Heuer watch 2,300.00

Diamond earrings 1,500.00

Wedding ring 5,500.00

Wife’s vehicle loan (26,756.90)

Wife’s student loans (48,416.64)

Total: ([-]$41,458.72)


To Husband:

Husband’s 1st Source Account 1,082.80

Husband’s Toyota Tacoma 14,000.00

Firearms 2,000.00

Husband’s Tag Heuer watch 1,700.00

Husband’s vehicle loan (25,006.83)

Husband’s TD Bank credit card (1,155.63)

Husband’s Bank of America credit card (1,460.75)

Sam’s Club credit card (980.09)

Pier 1 credit card (400.00)

Discover credit card (1,691.89)

Total: (-11,913.39)

To balance the division of the marital estate and arrive at an

equal distribution, Husband shall be required to pay Wife the

sum of $14,772.67.

19. Each party shall be solely responsible for each debt assigned

to him or her, and the responsible party shall fully indemnify and

hold the other harmless against any damages and liability arising

out of the assigned debt.

20. In addition, Wife has persuaded the Court that Husband

should be required to reimburse her for certain expenses (or to

pay Wife outright if she has not yet paid the expenses) as follows:

Dental Bill $180.29

Bank Overdraft $900.56

Vehicle Damage $5,187.86

Insurance Coverage $1,269.00

Unpaid Temporary Maintenance $9,240.00

Total: $16,777.71

21. The total amounts to be paid to Wife, $31,550.38, shall be

reduced to a judgment in favor of Wife and against Husband.

The judgment shall accrue simple interest at the statutory rate of

8% per year until it is paid in full.

22. Wife has requested that the Court order Husband to pay

some or all of her attorney’s fees as authorized by statute. The

Court has considered the relative earning power of the parties,


the division of the marital estate, the conduct of the parties that

affected the length of the case and the fees incurred as a result by

both parties, along with the affidavit submitted by [Wife’s

attorney]. According to the affidavit, Wife has incurred

$24,247.62 in fees and expenses. Reviewing the hourly rates for

the attorneys involved, the Court concludes that the rates are

reasonable for the greater South Bend-Mishawaka market in

cases of this nature and involving attorneys with their respective

levels of experience. The Court also concludes that the number

of hours spent by Wife’s attorneys in representing her are

reasonable. After considering the relevant factors, the Court

concludes that a reasonable fee award is $20,000. . . .

Appealed Order at 3-8.

[4] Nearly three months later, on June 11, 2018, Husband filed a Motion for Relief

from Judgment based on excusable neglect due to an error in communication.

In his motion, Husband alleged that his attorney “did not lay eyes” on the

decree until on or about May 25 despite the trial court’s electronic filing of the

order on March 19. Appellee’s Appendix, Volume 2 at 3. Husband’s counsel

was unaware of the order until Husband contacted counsel’s office on May 23

and advised that he had gone to the court house to obtain a copy of the decree.

Counsel alleged this was the first time he learned a decree had been entered

even though his office received the decree and electronically saved it on March

21. Husband argued this constituted excusable neglect and asked the court to

consider the issues raised in the motion on their merits.2 Substantively, he

2Although we need not determine whether counsel’s actions constitute excusable neglect, we take this

opportunity to comment on Husband’s trial counsel’s failure to timely discover the decree. Counsel’s office

received the decree on March 21, and it was electronically saved to a folder at that time. Later, on April 2,


maintained: (1) the trial court erred by entering findings on uncontested custody

issues; (2) half of Wife’s student loans were acquired before the marriage and

should not have been included in the marital estate; (3) the trial court erred by

ordering Husband to reimburse Wife for unpaid temporary maintenance in light

of the parties’ agreed temporary order; and (4) the trial court should reconsider

the award of attorney fees to Wife. See id. at 4-9.

[5] The trial held a hearing and court issued an order on July 23 characterizing

Husband’s motion as a “motion to correct errors presented as a motion for

relief from judgment.” Appealed Order at 9. The trial court granted the motion

in part with respect to the child custody issues and denied the motion pertaining

to the division of property issues. It stated:

Although there is a question whether the Court can grant

[Husband’s] requested relief due to the timing of his motion, the

Court determines that even if the timing was not in issue the

motion would be denied. Therefore, the timing question is moot.

([Husband’s] counsel filed the motion pursuant to Trial Rule

Husband contacted his counsel and asked if the trial court had reached a decision. Even though the decree

had been issued two weeks prior and electronically saved, counsel advised Husband that he was not aware of

a result at that time. Instead, it was Husband who notified counsel of the result on May 23, over two months

after the decree had been entered. In Husband’s 60(B) motion, counsel explained that he did not receive the

decree “due to an apparent error in communication or transfer of the electronic receipt of the [d]ecree within

his office[.]” App. of Appellee, Vol. 2 at 3-4. It is likely that had counsel made reasonable efforts to search

the electronic folder, communicate with his assistant, or check the docket when Husband called on April 2,

he would have discovered the decree and could have filed an appropriate and timely motion. However,

counsel’s failure to discover the decree resulted in an untimely motion that the trial court addressed. To

prevent similar instances in the future, we advise counsel to take reasonable efforts to keep abreast of his

client’s cases and to immediately remedy any communication issues within his office.


60(B) because of an error in his office that precluded the timely

filing of a motion to correct error.)

[Husband’s] motion claims the Court committed errors in its

division of the marital estate. The Court has reviewed the

contents of [Husband’s] motion and determines that the

arguments amount to a disagreement with the Court’s ruling

rather than accurately pointing to an error in the Court’s

decision. The Court declines [Husband’s] invitation to

reconsider the evidence presented, and therefore this portion of

the motion is denied.

Id. at 10. The trial court issued an amended decree of dissolution on August 27,

2018. Husband now appeals.3

Discussion and Decision

I. Wife’s Student Loans

[6] Husband challenges the trial court’s judgment with respect to Wife’s student

loans. A trial court has broad discretion in dividing the marital estate, and we

will reverse a trial court’s decision only for an abuse of discretion. Goodman v.

Goodman, 94 N.E.3d 733, 742 (Ind. Ct. App. 2018), trans. denied. “The party

3 In her brief, Wife argues Husband’s Motion for Relief from Judgment should have been denied by the trial

court because he failed to submit evidence of excusable neglect. See Appellee’s Brief at 16. Wife does not,

however, argue that Husband’s appeal is untimely. Because the trial court entertained Husband’s motion

and ruled on the substantive issues raised by Husband, despite considerations of timeliness, we too entertain

his appeal. See Ind. Appellate Rule 1 (“The Court may, upon the motion of a party or the Court’s own

motion, permit deviation from these Rules.”); see also In re O.R., 16 N.E.3d 965, 971 (Ind. 2014) (failure to file

a timely appeal “does not deprive the appellate courts of jurisdiction to entertain the appeal.”).


challenging the trial court’s division of marital property must overcome a strong

presumption that the trial court considered and complied with the applicable

statute, and that presumption is one of the strongest presumptions applicable to

our consideration on appeal.” Id. On review, we do not reweigh the evidence

or assess the credibility of the witnesses. Id. Instead, we consider only the

evidence most favorable to the trial court’s disposition of the marital property.

Id.

[7] The trial court must divide marital property in a “just and reasonable manner”

in dissolution proceedings. Ind. Code § 31-15-7-4(b). The division of marital

property is a two-step process. O’Connell v. O’Connell, 889 N.E.2d 1, 10 (Ind. Ct.

App. 2008). The trial court first ascertains what property must be included in

the marital estate and then divides the estate in a just and reasonable manner.

Id. Indiana employs a “one-pot” theory in which all property acquired before

or during the marriage is included in the marital estate. Goodman, 94 N.E.3d at

742. “While the trial court may ultimately determine that a particular asset

should be awarded solely to one spouse, it must first include the asset in its

consideration of the marital estate to be divided.” Id. With respect to the first

step:

(a) [T]he court shall divide the property of the parties, whether:

(1) owned by either spouse before the marriage;

(2) acquired by either spouse in his or her own right:


(A) after the marriage; and

(B) before final separation of the parties; or

(3) acquired by their joint efforts.

Ind. Code § 31-15-7-4. Marital property includes both assets and liabilities.

Capehart v. Capehart, 705 N.E.2d 533, 536 (Ind. Ct. App. 1999), trans. denied.

Although partially acquired before the marriage, the trial court properly

included all of Wife’s student loan debt in the marital estate.

[8] Although Husband frames the issue as whether the trial court erred by

including Wife’s entire student loan debt in the “marital pot,” the substance of

his argument leads us to believe that he challenges the trial court’s division of

the property.4 In determining how to divide the marital estate, the trial court

begins with the presumption that an equal division is just and reasonable. Ind.

Code § 31-15-7-5. However, this presumption may be rebutted by a party who

presents evidence that an equal division would not be just and reasonable. Id.

A trial court may consider the following factors in determining whether to

deviate from the presumption:

4 See Brief of Appellant at 11 (Husband argues “Wife began schooling before the marriage and incurred the

debt to her benefit only. Husband made no contribution towards its acquisition. Further, Wife has not used

her degree to obtain employment and it is a degree with only the benefit of increased knowledge solely to

Wife while providing no positive economic impact on the marital finances.”).


(1) The contribution of each spouse to the acquisition of the

property, regardless of whether the contribution was income

producing.

(2) The extent to which the property was acquired by each

spouse:

(A) before the marriage; or

(B) through inheritance or gift.

(3) The economic circumstances of each spouse at the time the

disposition of the property is to become effective . . .

(4) The conduct of the parties during the marriage as related to

the disposition or dissipation of their property.

(5) The earnings or earning ability of the parties as related to:

(A) a final division of property; and

(B) a final determination of the property rights of the

parties.

Id. In dividing the marital estate, the trial court assigned Wife’s entire student

loan debt to her. See Appealed Order at 6. With respect to the presumption,

the trial court determined that Wife came close to rebutting the presumption but

did not successfully rebut it. Here, the trial court properly included Wife’s

entire student loan debt in the marital pot pursuant to Indiana Code section 31-


15-7-4 and then assigned that debt to her. The trial court did not abuse its

discretion with respect to Wife’s student loans.

II. Marital Dissipation

[9] Next, Husband argues the trial court erred by ordering him to reimburse Wife

$5,187.86 for the damage he intentionally caused to Wife’s vehicle. We review

a trial court’s findings of dissipation of marital assets under an abuse of

discretion standard. In re Marriage of Coyle, 671 N.E.2d 938, 942 (Ind. Ct. App.

1996). We will reverse only if the trial court’s judgment is clearly against the

logic and effect of the facts and the reasonable inferences to be drawn from

those facts. Goodman v. Goodman, 754 N.E.2d 595, 598 (Ind. Ct. App. 2001).

[10] In addition to the division of the marital estate, the trial court found that “Wife

has persuaded the Court that Husband should be required to reimburse her for

certain expenses[,]” including $5,187.86 in vehicle damage. Appealed Order at

7. As best we can discern, Husband argues his conduct does not constitute

marital dissipation because the damage occurred during the marriage, before a

dissolution petition was filed, and the parties continued to cohabitate for

months after the incident. 5 In addition, he asserts that because Wife paid for

5 In his brief, Husband cites to Walburn v. Walburn, 878 N.E.2d 544 (Ind. Ct. App. 2007), an unpublished

memorandum decision. Although Walburn in turn cites to two published decisions, we remind counsel that

citation to unpublished decisions is inappropriate and prohibited by our appellate rules. See Ind. Appellate

Rule 65(D) (“Unless later designated for publication in the official reporter, a memorandum decision shall

not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish

res judicata, collateral estoppel, or law of the case.”).


the damage with marital funds, the amount is not subject to division.

Husband’s argument is misplaced.

[11] First, we note that this expense was not included in the marital estate. See

Appealed Order at 3-4. It appears that the trial court ordered Husband to

reimburse Wife for the vehicle damage due to his conduct, in which he

intentionally damaged Wife’s car after learning of an affair. See Exhibits at 41-

53. Thus, the trial court’s order in this respect is not a question of a division of

assets.

[12] In any event, even if this amount was included in the marital estate and

assigned to Husband, the trial court found marital dissipation by Husband.

Dissipation of marital assets involves the “frivolous, unjustified spending of

marital assets.” Goodman, 754 N.E.2d at 598. “Waste and misuse are the

hallmarks of dissipation.” Coyle, 671 N.E.2d at 943. To determine whether

dissipation occurred, we consider the following factors: (1) whether the

expenditure benefited the marriage or whether it was made for a purpose

unrelated to the marriage; (2) the timing of the transaction; (3) whether the

expenditure was excessive or de minimis; and (4) whether the dissipating party

intended to hide, deplete, or divert the marital asset. Goodman, 754 N.E.2d at

598. Dissolution courts may consider evidence of either pre- or post-separation

dissipation. Hardebeck v. Hardebeck, 917 N.E.2d 694, 700 (Ind. Ct. App. 2009).

In this case, the trial court found that Husband destroyed a “substantial amount

of Wife’s clothing and household furnishings” and damaged her car “in a fit of


rage,” all of which were depicted in photographs admitted into evidence.

Appealed Order at 4; see also Exhibits at 27-45.

[13] Husband is correct that money used to satisfy marital debts before dissolution is

not marital property. Gard v. Gard, 825 N.E.2d 907, 910-11 (Ind. Ct. App.

2005). However, absent proof of asset dissipation, the trial court should not divide

assets used to satisfy marital debts before dissolution as marital property.

Pitcavage v. Pitcavage, 11 N.E.3d 547, 569 (Ind. Ct. App. 2014). Because the trial

court found that Husband’s “actions of destruction constitute dissipation[,]”

any marital funds used to pay for the damage are not marital property.

Appealed Order at 5. We cannot conclude the trial court abused its discretion

in finding Husband’s actions constituted dissipation and ordering him to

reimburse Wife for costs incurred as a result.

III. Unpaid Maintenance

[14] Husband also challenges the trial court’s order that he reimburse Wife for

unpaid temporary maintenance. “On appeal of claims tried by the court

without a jury . . . [we] shall not set aside the findings or judgment unless

clearly erroneous, and due regard shall be given to the opportunity of the trial

court to judge the credibility of the witnesses.” Ind. Trial Rule 52(A). When

the trial court enters findings pursuant to Trial Rule 52, we apply a two-tiered

standard of review. Blacklidge v. Blacklidge, 96 N.E.3d 108, 113 (Ind. Ct. App.

2018). First, we determine whether the evidence support the findings and then,

whether the findings support the judgment. Id. We will not set aside the trial


court’s findings and conclusions unless clearly erroneous, namely when the

record contains no facts or inferences to support them leaving us firmly

convinced a mistake has been made. Tompa v. Tompa, 867 N.E.2d 158, 163

(Ind. Ct. App. 2007).

[15] Additionally, “[a]ppellate deference to the determinations of our trial court

judges, especially in domestic relations matters, is warranted because of their

unique, direct interactions with the parties face-to-face, often over an extended

period of time. Thus enabled to assess credibility and character through both

factual testimony and intuitive discernment, our trial judges are in a superior

position to ascertain information and apply common sense[.]” Best v. Best, 941

N.E.2d 499, 502 (Ind. 2011).

[16] Here, the trial court concluded Husband should reimburse Wife for $9,240.00

in unpaid temporary maintenance. Husband does not argue Wife is not entitled

to some temporary maintenance6 but claims that he did not pay Wife

maintenance because she “waived its receipt in exchange for her relief from

responsibility for marital residency costs during the proceedings.” Br. of

Appellant at 13. The evidence reveals that an “Agreed Temporary Order” was

entered on February 13, 2015, which provided in part:

[Husband] shall pay the monthly mortgage payment in full on

the marital residence in lieu of payment of maintenance to

[Wife]. [Wife’s] waiver of maintenance shall constitute her

6Accordingly, we do not address whether Wife is entitled to temporary spousal maintenance.


contribution to the marital residence during the pendency of this

action.

Appellant’s App., Vol. 2 at 26; see also Exhibits at 170-72. Wife offered the

“Agreed Temporary Order” at trial and the trial court stated it was part of the

record. See Transcript, Volume II at 80.

[17] Although the trial court did not provide a calculation in its findings, it did state

that it was persuaded by Wife to award her $9,240.00 in unpaid temporary

maintenance. Based on the evidence in the record, it appears that the trial

court’s finding in this respect is derived from “Wife’s Revised Contentions,

Exhibits and Witness List” admitted into evidence. See Tr., Vol. II at 25, 27;

Exhibits at 2-10. Specifically, Wife argued that per the Agreed Temporary

Order, Husband agreed to pay the monthly mortgage payment in lieu of

maintenance to Wife; however, he failed to pay the mortgage which resulted in

foreclosure of the marital residence. Wife argues this warranted a deviation

from the presumption of equal division:

13. . . . Wife should receive set-off temporary maintenance she

would have been awarded during the pendency of this

dissolution of marriage action, in an amount equal to $60 per

week, retroactive to the February 13, 2015 Order until entry of

the Decree. As of the date of the final hearing, February 1, 2018,

the total for 154 weeks is $9,240.00.

Exhibits at 5.


[18] Husband testified that he made monthly mortgage payments through January

2016 but was ultimately unable to keep up with the payments. See Tr. Vol. II at

124-25. A judgment of foreclosure was entered on April 19, 2016. Although

the trial court took judicial notice of the Agreed Temporary Order, the

judgment for maintenance reflects nearly three years of maintenance owed

dating back to February 13, 2015, and it appears the trial court failed to

consider any mortgage payments Husband made during this time. Therefore,

we conclude the evidence in the record does not support the findings and in

turn, does not support the judgment of $9,240. We reverse the judgment with

respect to the unpaid maintenance and remand to the trial court to determine

the proper amount Husband owes Wife, taking into consideration the Agreed

Temporary Order and any evidence of mortgage payments Husband made

during this time.

IV. Attorney Fees

A. Award to Wife

[19] Husband challenges the trial court’s order awarding Wife $20,000 in attorney

fees. We review a trial court’s decision to award or deny attorney fees in

connection with a dissolution decree using an abuse of discretion standard.

Ahls v. Ahls, 52 N.E.3d 797, 802-03 (Ind. Ct. App. 2016). A trial court has

broad discretion in assessing attorney fees and we will reverse only if its

decision is “clearly against the logic and effect of the facts and circumstances

before it or if it misapplies the law.” Id. at 803.


[20] Indiana Code section 31-15-10-1(a) authorizes the award of attorney fees in

divorce proceedings:

The court periodically may order a party to pay a reasonable

amount for the cost to the other party of maintaining or

defending any proceeding under this article and for attorney’s

fees and mediation services, including amounts for legal services

provided and costs incurred before the commencement of the

proceedings or after entry of judgment.

[21] In awarding attorney fees, a trial court must consider the resources of the

parties, their economic condition, the ability of the parties to engage in gainful

employment and to earn adequate income, and other factors that bear on the

reasonableness of the award. Troyer v. Troyer, 987 N.E.2d 1130, 1142-43 (Ind.

Ct. App. 2013), trans. denied. “Consideration of these factors promotes the

legislative purpose behind the award of attorney fees, which is to [e]nsure that a

party in a dissolution proceeding, who would not otherwise be able to afford an

attorney, is able to retain representation.” Id. at 1143. This court has held that

when one party is in a superior position to pay the attorney fees over the other,

an award of attorney fees is proper. Id. Additionally, misconduct that directly

results in additional litigation expenses may properly be taken into account in

the trial court’s decision to award attorney’s fees. Barton v. Barton, 47 N.E.3d

368, 377 (Ind. Ct. App. 2015), trans. denied. The trial court need not give

reasons for its determination. Goodman, 94 N.E.3d at 751.

[22] Here, in awarding Wife $20,000 in attorney fees, the trial court “considered the

relative earning power of the parties, the division of the marital estate, the


conduct of the parties that affected the length of the case and the fees incurred

as a result by both parties, along with the affidavit submitted by [Wife’s

attorney].” Appealed Order at 8. Husband argues “[t]here is no significant

disparity in income” between the parties. Br. of Appellant at 14. However, the

evidence in the record reveals otherwise.

[23] According to Husband’s verified personal financial statement admitted into

evidence at trial, Husband’s yearly gross income was roughly $47,000 while

Wife’s gross income was nearly $29,000. See Exhibits at 12-15, 97. This is a

significant disparity in income. Husband also challenges the trial court’s

finding that the conduct of the parties affected the length of the case and fees

incurred. The Chronological Case Summary indicates that Wife filed motions

for rule to show cause on February 24, 2016, March 24, 2016, and June 13,

2016. Appellant’s App., Vol. 2 at 4-6. Wife also filed motions to compel on

August 23, 2016, March 16, 2017, and September 11, 2017. Id. at 7-8, 11.

Additionally, Husband filed motions to continue on March 20, 2017, March 31,

2017, and September 12, 2017. Id. at 9, 11. Moreover, the trial court found

that Husband’s actions constituted marital dissipation. Based on the evidence

in the record, we cannot conclude the trial court abused its discretion by

ordering Husband to pay Wife $20,000 in attorney fees.

B. Appellate Attorney Fees

[24] Wife asks this court to remand the case to the trial court for an assessment of

appellate attorney fees and expenses. Indiana Appellate Rules 66(E) provides:


The Court may assess damages if an appeal, petition, or motion,

or response, is frivolous or in bad faith. Damages shall be in the

Court’s discretion and may include attorneys’ fees. The Court

shall remand the case for execution.

Our discretion to award attorney fees under this rule is limited to instances

when an appeal is permeated with meritlessness, bad faith, frivolity,

harassment, vexatiousness, or purpose of delay. Townsend v. Townsend, 20

N.E.3d 877, 880 (Ind. Ct. App. 2014), trans. denied. And although our authority

to award damages on appeal is discretionary, “we must use extreme restraint

when exercising this power because of the potential chilling effect upon the

exercise of the right to appeal.” Id.

[25] Although Wife explicitly states she does not request damages under this rule, it

appears that Wife’s argument misunderstands the difference between a request

for appellate attorney fees pursuant to Indiana Appellate Rule 66(E) and

Indiana Code section 31-15-10-1. See id. at 881 (“[I]t is the legal basis for the

request, not the forum, that determines which standard applies.”). Here, Wife

argues appellate attorney fees are appropriate due to Husband’s “efforts to

lengthen the process” and his frivolous argument with respect to her student

loan debt. Appellee’s Br. at 23. Therefore, the underlying basis for Wife’s

request for appellate attorney fees is Husband’s delay and frivolous argument,

both of which provide a legal basis for damages pursuant to Indiana Appellate

Rule 66(E).


[26] “[I]f a request for appellate attorney fees is based on a frivolous appeal, then it

may be made on appeal pursuant to Appellate Rule 66(E). If, on the other

hand, a party seeks appellate attorney fees in a dissolution proceeding based on

the parties’ economic circumstances pursuant to Indiana Code Section 31-15-

10-1, then that request is properly made in the trial court without consideration

of Appellate Rule 66(E).” Townsend, 20 N.E.3d at 881; see also Goodman, 754

N.E.2d at 603 (explaining Indiana Code section 31-15-10-1(a) authorizes the

trial court to award reasonable appellate attorney fees and jurisdiction rests with

the trial court to determine if an award of appellate attorney fees is appropriate).

In any event, although Husband did not file an appeal or motion within thirty

days of the entry of the decree, he filed a motion based on excusable neglect

and the trial court entertained the substance of his complaints, and he has been

partially successful on appeal. We therefore decline to award damages

pursuant to Indiana Appellate Rules 66(E).

Conclusion

[27] For the reasons set forth above, we conclude the trial court properly included

Wife’s entire student loan debt in the marital estate and it did not abuse its

discretion with respect to marital dissipation and the order for Husband to pay

$20,000 of Wife’s attorney fees. However, the trial court’s judgment pertaining

to unpaid temporary maintenance is clearly erroneous. We therefore affirm the

trial court’s division of property and attorney fees but reverse the trial court’s

judgment for unpaid temporary maintenance and remand the issue to the trial


court to determine the proper amount in light of any monthly mortgage

payments made by Husband during the relevant time. We also conclude Wife

is not entitled to appellate attorney fees.

[28] Affirmed in part, reversed in part, and remanded.

Riley, J., and Kirsch, J., concur.

Documents

COURT OF APPEALS OF INDIANA - IN.gov · COURT OF APPEALS OF INDIANA Patrick M. Dobson, Appellant-Petitioner, v. Bethany L. Dobson, Appellee-Respondent. April 18, 2019 Court of Appeals